#1 By: Cory Doctorow, December 27th, 2013 19:48
#2 By: Daniel Luke, December 27th, 2013 19:51
Thank God that we have impartial judges to decide these important matters in our democracy despite the popular will of The People.
#3 By: fuzzyfuzzyfungus, December 27th, 2013 19:56
Does the good Judge Pauley have any explanation of the curious conundrum that the ability to detect "relationships so attenuated and ephemeral they would otherwise escape notice" would only be non-invasive and not-something-radically-new if it were almost entirely useless; but if it were, in fact, useful, it would be (by his own description) among the most dramatic increases in the power and scope of surveillance since practically ever(maybe writing, maybe the professionalization of security forces under absolute monarchies, maybe something else; but serious business here)?
#4 By: Noah Django Gross, December 27th, 2013 19:57
#5 By: Austin Hamman, December 27th, 2013 20:09
when are these people gonna stop being so chicken shit about 9/11. yes it was a tragedy but if we must chose between occasional loss of life or a loss of the liberties that make those lives worth preserving, i would chose the former. and yes even if i, or someone i loved, was among those lives. we should not allow ourselves to become so fearful that we forfeit our rights simply on the promise of safety. we are the land of the brave, it's time we acted like it.
#6 By: Stephen Schenck, December 27th, 2013 20:16
"He called it a "vital tool" for fighting terrorism..."
Is efficacy now a defense against other illicit acts?
Well, I did drive my car through that crosswalk full of kids, but it was my job to deliver that pizza on time, and vehicular manslaughter is just another tool I can use to help effect mission success.
#7 By: agonist, December 27th, 2013 20:21
I'm sure there are lots of judges that will side with the NSA-- and I'm sure there are a few sitting on the Supreme Court right now. What we need is a political solution, so we should make sure our members of Congress know that we won't vote for them if they don't vote to reign in NSA spying.
#8 By: mablem8, December 27th, 2013 20:22
As I understand it, Judge Leon found the metadata collection "likely unconstitutional" (not illegal), and this judge found it legal (not constitutional). Legality and constitutionality are not necessarily the same.
#9 By: Ibrahim, December 27th, 2013 20:24
Then pass legislation!
I'm sick and tired of people leaving these important matters to the courts, and being surprised that they're not beholden to the electorate. Newsflash: That's not their job.
#10 By: bwv812, December 27th, 2013 20:25
Earlier this month, a different federal judge ruled that NSA spying was illegal. It was likely from the start that that case would go to the Supreme Court, but that likelihood just shot up now that there's a circuit split among the federal courts.
We don't have a circuit split, as both of these decisions are only at the District Court (i.e., trial) level—where they are binding precedent on absolutely no one—and not at the Circuit Court (i.e., appellate) level where they would be binding precedent for that Circuit. There is thus no difference in the established law between Circuits, so there is no split. I suspect that after the appeals have been heard there will be no split, as I think that Judge Leon's decision will be overturned on appeal while this decision will be upheld. If the Supreme Court then decides to hear one or both of these cases I suspect they may well be overturned along the lines of Leon's decision.
#11 By: Daniel Luke, December 27th, 2013 20:34
"Likely" unconstitutional? Even though this is a bit more hopeful than a ruling that the NSA spying is "Constitutional", it is still a gut-wrenching example of feckless equivocation. In fact, I don't think I've ever heard of such a thing. What if someone were found "likely" guilty of murder? Wouldn't inspire much confidence, would it? If the constitutionality of a particular matter isn't starkly apparent to this judge, he (or was it a she?) shouldn't be on the damn bench.
#12 By: Taymon, December 27th, 2013 20:36
The reason Judge Leon's ruling is reported as "likely" unconstitutional is because it was a preliminary injunction, not a final ruling. He hasn't actually heard the case yet.
#13 By: Cory Doctorow, December 27th, 2013 20:40
Thanks for the correction; I'll clarify the wording.
#14 By: Daniel Luke, December 27th, 2013 20:47
I would have preferred no language at all to weak language. If the comment was made before the case was heard, on what basis did the judge decide that it was "likely" unconstitutional? Such a comment, while sounding promising, still leaves open a window that, though unlikely, such spying, is, in fact Constitutional. The whole matter seems quite strange. Since the hallowed Constitution seems to be subject to wildly different interpretation depending on who is doing the interpretation, seems to me as if measures should be taken to remove all ambiguity once and for all. I'm surprised that I haven't heard more talk at this point about a Constitutional amendment.
#15 By: Rob Northrup, December 27th, 2013 20:47
There's something I give my wife every night voluntarily, so it's not invasive if the government looks it over, right? I must not want it to be very private if I'm sharing it with her anyway.
(I give her a back-scratch.)
#16 By: Boundegar, December 27th, 2013 20:57
Ah, but you are not the government, nor are you an important corporation.
#17 By: bwv812, December 27th, 2013 20:59
The decision that Judge Leon has issued was not a decision on the merits. It was a decision about whether to grant a pre-trial preliminary injunction. One of the elements in deciding whether to grant a preliminary injunction is the likelihood of success on the merits: it would be pretty unfair to grant injunctions when the claim on which the injunction is based is of little merit. Because Leon thought the program was likely unconstitutional, he thought the plaintiffs were likely to succeed on the merits. This doesn't mean he's made his final ruling on the merits or that there has been a trial on the merits. It just means that from what he's seen so far, he thinks the plaintiffs are likely to succeed in showing that the program is unconstitutional.
Well, we generally think of the Supreme Court as the body that removes ambiguity from the Constitution. Constitutions really cannot be written in a way that will foresee the future and preclude all ambiguity, and amending them is quite difficult. If they were easy to amend they would have the same practical effect as regular statutory law, which really isn't their intended purpose.
#18 By: Jim_Kirk, December 27th, 2013 21:01
Not invasive partly "because people "voluntarily" give their data to large corporations."
Yeah, but corporations can't incarcerate me, execute me, or any number of things a government can do, without ever having to explain their motive...
#19 By: Marja Erwin, December 27th, 2013 21:17
Private jails and prisons can incarcerate you, and by various means, denying you food, denying you medicine, etc. execute you. Even before trial.
#20 By: Alice Weir, December 27th, 2013 22:01
Got another news flash for ya, then. The Legislature has not done jack-all about this, either. Nor will anything they write be subject to the critical legal tests these cases will bring.. These federal courts can decide whether a thing is legal or not - their scope is much broader - but the Supreme Court can make a specific ruling as to these things being unconstitutional altogether. Ultimately, it's the better, longer-lasting solution.
Meanwhile, I strongly suggest we un-elect every Congress critter who's been sitting there making excuses. They can claim they didn't know - but that excuse won't wash any more!
next page →